Free Response to Motion - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

Document 513

Filed 07/20/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ SHELDON PETERS WOLFCHILD, et al., ) ) ) Plaintiffs, ) ) ) v. ) ) ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on July 20, 2007

DEFENDANT'S RESPONSE TO "MOTION TO CLARIFY" (Dkt #506) Defendant, the United States, submits this response to the paper submitted to the Court July 3, 2007, by "certain members of the extended family o f Frances E. Felix." The relief sought in the motion is that the Court enter an order "confirming that those persons listed on the First Amended Complaint of Francis Felix ... are indeed included as intervenors in this action and need not file a second action to participate." Defendant opposes the motion because the relief sought is inconsistent with this Court's previous Orders and directives, with the Rules of this Court, and with the appropriate management of this case. The matter of the intervention and legal representation of the members of Ms. Felix's "extended family" has been the subject of numerous filings and Orders in this case. In brief, Defendant's position was and remains that pursuant to Rules 11 and 83.1, and this Court's Orders, the "extended family" could participate in this case only through counsel

Case 1:03-cv-02684-CFL

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admitted to the bar of this Court; that to bring or pursue their claims they had to file a Complaint through such counsel (or be added to an existing Complaint via a proper request for amendment approved by the Court); that they hadn't done so as of the time Defendant filed its motion to strike, and that they still haven't done so. (See, e.g., Defendant's Reply docketed as paper no. 408 in this case.) At the February 5, 2007, hearing in this case, regarding various party-related motions, the lawyer who filed the recent "Motion To Clarify Order" stated that he was going to represent Francis E. Felix and certain Felix family members. During the hearing, the Court directed that counsel to file a notice of appearance on behalf of Fran Felix and her "immediate family," and "those of her extended family that wish to retain" that counsel's firm; and then, as the Court directed, "address those members of her extended family [] in a further filing." (Tr. of February 5, 2007, hearing at p. 89-90). As far as Defendant is aware, no notice of appearance has been entered for the "340 members of her extended family," and Ms. Felix is still representing herself and "immediate family" members pro se. No "further filing" was made regarding the extended family members, until the "motion to clarify."1/ The appropriate "further filing" after the February 2007 proceeding would have been a motion to amend an existing Complaint to add specifically and clearly identified "extended family" members, or a separate Complaint in Intervention filed on their behalf by a lawyer admitted to the bar of this Court. Instead, as matters stand now, not having filed any pleading through counsel, the
1/

As far as Defendant can tell, although a representation was made at some point that thirtythree or so alleged members of the Felix family formed a part of the Julia DuMarce group, the names of those persons could not, in fact, be found in the Julia Du Marce group. -2-

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extended family members are not in the case, for the reasons the United States set forth in its memoranda filed with the Court as papers #380 (motion to strike) and 408 (reply to opposition to motion to strike); and for the reasons this Court articulated in its Orders directing that Ms. Felix could only represent her "immediate family." The United States' motion to strike was granted in the Court's April 27, 2007, Order (Dkt. No. 453). The "extended family members" should not simply be deemed to be in the case now, not having filed a Complaint through counsel, nor having been joined via a proper amendment complying with the Rules of this Court. The United States would consent to a clear, promptly filed amendment to an existing Complaint in Intervention to add those members of the Felix family moving counsel represents (provided that the Answer the United States has already filed is deemed to respond to that Amended Complaint), and provided that the family members on whose behalf that Amended Complaint are specifically and individually identified in such a pleading.2/ But none of the extended family members should not be permitted to proceed without having filed a Complaint through qualified counsel. For all of these reasons, the relief requested in the "motion to clarify" should be denied.

2/

Defendant notes that the party information Francis Felix provided to the Court appears to show that two persons who had previously been described as members of her "immediate family" are in fact not immediate family, but grandchildren, whom a pro se person cannot represent. See, e.g., Chief War Eagle Family Association v. United States, -- Fed. Cl. -- , No. 7-213L (Fed. Cl. July 18, 2007), a copy of which is filed as an attachment to this paper. Such persons may wish to proceed, instead, as the United States suggests above for "extended family." -3-

Case 1:03-cv-02684-CFL

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Dated: July 20, 2007

Respectfully submitted,

RONALD J. TENPAS Acting Assistant Attorney General Environment and Natural Resources Division

s/ Laura Maroldy by Sara Culley LAURA MAROLDY Natural Resources Section Environment and Natural Resources Division United States Department of Justice Benjamin Franklin Station, P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 514-4565 Facsimile: (202) 305-0506 Email: [email protected] Attorney of Record for the Defendant THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044-0663

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CERTIFICATE OF SERVICE I hereby certify that on this 20th day of July 2007, I directed that a copy of the Notice of Electronic Filing of the foregoing Defendant's Response To Motion To Clarify be sent by FIRST CLASS MAIL, POSTAGE PREPAID, to:

Francis Elaine Felix P.O. Box 141232 Minneapolis, MN 55414

Philip Baker-Shenk HOLLAND & KNIGHT LLP 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, D.C. 20006

Kermit A. Belgarde, # 905798 Airway Heights Correction Center NORA UNIT B-39-L P.O. Box 1839 Airway Heights, WA 99001-1839 DATED this 20th day of July 2007. s/Laura Maroldy by Sara Culley Laura Maroldy

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